The Child Custody Act (CCA) (MCL 722.21 et seq.); Custody; Defendant-guardian’s status; Heltzel v Heltzel; Best-interests; MCL 722.23; Burden of proof; Factor (i); Joint custody; MCL 722.26a(1)(b)

The court concluded that the trial court erred by finding defendant-guardian “had to prevail on every best-interest factor, by failing to properly consider factor (i), and by failing to make the required findings under MCL 722.26a(1)(b).” Thus, it vacated and remanded because “the trial court must analyze the considerations outlined in MCL 722.26a(1) and all the best-interest factors delineated under MCL 722.23 by considering up-to-date information, and must rearticulate and explain its reasons for granting or denying” plaintiff-father’s request for joint physical and legal custody. Defendant (the mother and temporary legal guardian of the children’s incapacitated mother, EH) argued that, “as EH’s guardian, she was statutorily required to defend EH’s parental interests and thus the trial court clearly erred by determining that [she] was a third party custodian and applying the parental-presumption doctrine.” The court found “no merit in her argument on appeal. Generally, EH, as the children’s biological mother, would have been a proper defendant in plaintiff’s paternity action.” But because “EH was legally incapacitated, plaintiff commenced the paternity action against defendant as EH’s temporary guardian. Once the trial court adjudged plaintiff to be the children’s legal and biological father and awarded sole legal and physical custody to defendant, [she] had a right to defend plaintiff’s custody dispute and present evidence that the children’s best interests were served by the continued placement of the children with” her. But until she moved for reconsideration of the trial court’s order, she claimed “it was in the children’s best interests that she have sole legal and physical custody as a third party.” She did not argue “that EH should have custody,” or that she was “simply advocating on behalf of EH as her guardian.” While EH was involved in the children’s lives and had significantly recovered, EH remained legally incapacitated and under guardianship. “Given defendant’s status as a third-party custodian and EH’s incapacity to exercise custody of the children herself, the trial court’s application of the parental-presumption doctrine” was not erroneous. Defendant further argued “that even if she was a third-party custodian, the trial court erred by holding that she had to prevail on each and every” best-interest factor to meet her clear-and-convincing-evidence burden, by failing to determine the children’s reasonable preferences, and by failing to determine whether the parties could cooperate as to joint legal custody. The court agreed, noting that neither it nor the Supreme Court have ruled that Heltzel “requires the third party to prevail clearly and convincingly on each and every one of the 12 best-interest factors in order to be awarded custody.” The trial court erred by finding defendant had to prevail on every best-interest factor to show she “met the clear-and-convincing evidence burden.” As to factor (i), the court found “the children were eight years old and six years old, respectively, at the conclusion of the evidentiary hearing, and nothing in the record suggested that [they] could not voice their individual reasonable preferences. The trial court’s failure to evaluate” their preferences was erroneous. The court also held that the “trial court failed to comply with MCL 722.26a(1)(b),” and this omission constituted clear legal error.